Highlights of Noteworthy Decisions

Decision 2246 16 R
24/04/2018
G. Dee
  • Evidence (surveillance)
  • Evidence (weight)
  • Reconsideration (procedural error)
  • Evidence (case record)

The worker applied for reconsideration of Decision No. 2246/16.

In Decision No. 2246/16, the hearing panel found that the worker had entitlement for a recurrence in August 2010. However, based on inconsistencies in the worker's evidence and surveillance evidence showing the worker performing activities that were clearly beyond the claimed level of disability, the hearing panel found that the worker did not have a permanent impairment and was not entitled to benefits after February 2013.
The worker submitted that the hearing panel place inappropriate weight on the surveillance evidence, given that it was not actually viewed during the hearing.
The Vice-Chair noted that, while some portions of surveillance evidence can be very significant, there is also much surveillance evidence that is almost completely irrelevant. Video recordings can be very lengthy, and hearing time is a scarce and expensive resource. There is usually a written summary of surveillance evidence in the appeal record. Based on the written summary and pre-hearing preparation, a panel may decide to play all or portion of a video and to ask questions of witnesses about the video.
Recorded video evidence has the same status in the appeal record as written evidence. It is evidence that may be relied upon to reach a decision regardless of whether the contents are played or read in during the oral hearing of the matter.
A party has the right, subject to considerations of relevance, to play any portion of video evidence and to ask questions of witnesses about that evidence. However, regardless of whether it is played during the hearing, it is still evidence within the appeal record and may be relied upon by the panel in reaching a decision.
In this case, the worker's representative had a copy of the video material in advance of the hearing, and had full opportunity to ask the worker questions about the content of the video, had she chosen to do so. She also had opportunity to make submissions about the surveillance evidence in her closing submissions.
The Vice-Chair found no procedural defect in the handing of the surveillance evidence by the hearing panel.
The hearing panel considered all the evidence and came to a reasonable conclusion. The application to reconsider was denied.